Mishal Patel, our Director of Citizenship and Immigration, discusses what British citizens need to consider when adopting children from abroad to ensure they can pass their citizenship on to their adopted children.
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- The difference between biological and adopted children in the law
- Passing British citizenship on to stepchildren
- The cut-off age for registering adopted children
- Immigration visas for adopted children
- Mishal’s most memorable case
- Advice for British citizens who are on an adoption journey
This transcript has been lightly edited for clarity.
Shannan Collop: Hello and welcome back to the Sable International Citizenship Podcast. For those who are new here, my name is Shannan and I'm here with Mishal Patel, our Citizenship and Immigration Director. British citizenship is a fascinating topic. There are all kinds of common and uncommon routes, and today we will be talking about adoption and British nationality.
The difference between biological and adopted children in the law
SC: Does the UK draw a distinction between biological and adopted children in terms of British nationality? If so, what does that mean for adopted children applying for British citizenship?
MP: The simple answer is, yes, the UK does unfortunately draw a distinction between adopted children and biological children of British citizens. Now, what that means is while a biological child could have access to their dad or mom’s British nationality, it’s not automatic for adopted children even if their adoptive parent was born in the UK. There are exceptions to that rule, but that's generally the case.
Passing British citizenship on to stepchildren
SC: If I have British citizenship, would I be able to pass it on to my adopted children from South Africa?
MP: Yes and no. I say yes because there is a part of British nationality law that gives automatic acquisition of British citizenship at the time of the adoption in this case, only because South Africa is one of the countries that has reached an agreement at the UN level (HCCH 1993 Adoption Convention).
However, for this to work, you must be British “otherwise than by descent” and you have to be what they call “habitually resident” in the UK at the time of the adoption. If you can prove that, then your adopted child would be able to take on your British citizenship. But in my experience, that is quite rare. I've actually never come across it myself.
The cut-off age for registering adopted children
SC: Is there a cut-off age when registering your adopted children for British citizenship?
MP: Absolutely. If you go back to my earlier example – if your citizenship could be passed down, but you are not habitually resident in the UK, in that case, a remedy to that would be to apply for the child to be registered as a British citizen.
A specific part of the UK nationality law exists to give a remedy in what is quite an unfair situation.
Because, of course, if this was your biological child, you would just be applying for a British passport, even if they were born abroad. If you have to register the child as a British citizen, then the cut-off is 18 years.
SC: What if you just missed the deadline? Is there some sort of remedy for this?
MP: Unfortunately, there isn’t a remedy for an adult who was adopted by someone born in the UK. For example, let's say there’s someone who is 22 years old, and his adoptive father was born in the UK. I don’t have an immediate remedy that I could put into place to get that applicant British citizenship. Unfortunately, the current thinking of the Home Office is that they’re not going to exercise discretion to register such children, because their parents did not take the opportunity to register them before their 18th birthday. I don't agree, I think such adults should be registered. We are in the process of trying to see if we can amend their way of thinking or if we can find an agreement with them that would allow such a plan.
Immigration visas for adopted children
SC: Are adopted children able to get immigration visas for the UK if citizenship is not possible?
MP: Absolutely. In the same example I gave earlier, a 22-year-old approaches us, His adoptive dad was born in the UK, but he can't get British citizenship as per the current thinking of the Home Office. I’d say to him, “If your intention to settle in the UK, you could get a UK Ancestry visa through your adoptive paternal or maternal line.” Even if it was someone under 18, and for whatever reason, we can't register that child as a British citizen through their adoptive parents or parents, they can still enter the UK as dependents on either parents’ immigration visas.
For example, if a British citizen based in South Africa adopts a child there, his wife is South African with no UK connections, they want to come to the UK, but they may not have time to explore the British nationality options from abroad. They could come into the UK with the wife getting a spouse visa, because she’s married to a British citizen, and the adoptive child coming along as a dependent. Weirdly enough the immigration law is much more giving to adoptive children than the British Nationality law.
Mishal’s most memorable case
SC: I know you have worked on multiple adoption cases throughout your career. You must have so many memorable cases. Could you maybe give us some insight on some of them?
MP: Oh, that's a tough one. I mean, I have quite a few favourites. But the most recent one has really stuck in my memory, and it’s been in the back of my mind throughout today's podcast. It really stood out to me because of the child’s condition. This child was found abandoned in a hut, taken care of by their granddad and was just left there during the day with a bottle of milk while the granddad went to earn the day’s living. This child was probably a couple of years old, and the social worker found this child covered with rat bites. Reading that social worker’s report really reminded me why I do what I do and why I love what I do.
The couple that eventually ended up adopting this child had to fight this process for seven years to get the adoption done but their bad luck didn't stop there. Both parents were British citizens, born in the UK, but they also had a claim made by the paternal side of the child’s family, so that they had to fight that. They eventually got their way into the UK, but the wrong stamp was issued by the UK government to the child. So, even though the child came into the UK after being adopted, the long leave to enter endorsement was put on to the child. In fact, he shouldn't have been given leave to enter, but rather indefinite leave to enter, because both adopted parents were British citizens. Because they got the wrong endorsement, we had to act quickly get the right one put in. We then managed to secure British citizenship for the child.
I remember that day quite well when the citizenship certificate eventually came through. There were happy tears on both sides. For them, this was now a 10-year ordeal that came to an end. It was a really big deal. So, I think that's one that will stick in my memory for quite a long time.
Advice for British citizens who are on an adoption journey
SC: That's so beautiful. Do you have any advice for British citizens who would like to, or are already embarking on adopting children in South Africa?
MP: Yeah, actually, there are a few key things I would say to anyone that is embarking, or in the process of adopting a child anywhere in the world.
If you're a British citizen, please make sure that you have sought advice from an immigration and nationality expert on exactly what documents you will need to be ready with at the time of the application. A lot of people will go abroad from the UK, or are abroad as British citizens, adopting children from places like South Africa or Zimbabwe, but not all these places are recognised as good for adoptive practices for the UK. In other words, they're not recognised member nations under the Hague Convention. If that is the case, then it would be really hard to register the child as a British citizen.
If you're thinking of adopting, where you're going to be adopting from is going to be quite crucial to whether the child gets your British citizenship.
Number two, if you do find the right place to adopt from, and you're about to embark on that process there, then you should get in touch with us before you go there. If you're going there from the UK, you will have to prove your habitual residence in the UK, and we can help you come up with a plan with the steps you're going to have to take to maintain that. But if you're living abroad and have adopted children from a country that is a member of the Hague Convention, then you should also get in touch with us because there are certain, important documents that you need to supply to us at the time of the citizenship application that you won’t be able to go back and get. Sometimes those files can be sealed because of closed adoptions for example.
The third thing I want to say is to watch out for the 18th birthday, of course. If you're someone who has adopted, and you are a British citizen and your child's 18th birthday is approaching, you should get in touch with us.
SC: Thank you so much Mishal, thank you for your time and thank you to everyone who tuned in today. In the next episode, we'll be talking about surrogacy and British citizenship.
Find out if you have a British citizenship claim by filling in our free online British citizenship Assessment. Get in touch with our citizenship team on +44 (0) 20 7759 7581 or at email@example.com
Catch up on the previous podcast episodes in this series:
- Complications regarding citizenship for children by birth and descent
- Citizenship for children under 18 through a grandparent
- Citizenship for children under 18 through a great-grandparent
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